92 Decision Citation: BVA 92-05879
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 91-45 918 ) DATE
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THE ISSUES
Whether a rating decision of September 25, 1974, denying
entitlement to service connection for external otitis,
bilateral, and hearing loss involved clear and unmistakable
error.
Whether new and material evidence has been presented to
reopen a claim of entitlement to service connection for
bilateral external otitis.
Whether new and material evidence has been presented to
reopen a claim of entitlement to service connection for
bilateral hearing loss.
Entitlement to service connection for tinnitus.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
James A. Frost, Associate Counsel
INTRODUCTION
This matter came before the Board on appeal of a rating
decision in July 1991 by the Waco, Texas, Regional Office
(hereinafter RO). The veteran served on active duty from
August 1942 to October 1945. In August 1991, the notice of
disagreement was received at the RO and the statement of the
case was issued. The substantive appeal was received at the
RO in September 1991. The case was docketed at the Board in
October 1991 and the file was referred to The American
Legion, which has represented the veteran throughout the
appeal. That organization filed written argument in support
of the appeal in December 1991 and the case is now ready for
appellate review.
By a rating decision in September 1974, the RO denied the
veteran's claims of entitlement to service connection for
bilateral external otitis and hearing loss; in October 1974
the veteran was notified of the decision; a timely appeal
was not filed and the decision became final. In 1991 the
veteran submitted additional evidence, seeking to reopen his
claims. The RO found that the additional evidence was not
new and material, and the current appeal on those issues
ensued.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that bilateral external otitis,
bilateral hearing loss and tinnitus had their onset in
service. It is also argued that the rating decision of
September 1974 was clearly and unmistakably erroneous,
inasmuch as the veteran was treated for an ear condition
within a year of separation from service.
DECISION OF THE BOARD
For the reasons and bases hereinafter set forth, it is the
decision of the Board that the rating decision of
September 25, 1974, denying entitlement to service
connection for bilateral external otitis and hearing loss,
did not involve error, new and material evidence has not
been submitted to warrant reopening of the veteran's claims
of entitlement to service connection for bilateral external
otitis and hearing loss, and the preponderance of the
evidence is against the veteran's claim of entitlement to
service connection for tinnitus.
FINDINGS OF FACT
1. The agency of original jurisdiction denied entitlement
to service connection for bilateral external otitis and
hearing loss in September 1974.
2. The rating decision of September 25, 1974, denying
entitlement to service connection for bilateral external
otitis and hearing loss was adequately supported by the
evidence then of record.
3. Additional evidence shows only that, many years after
service, the veteran had a bilateral high frequency
sensorineural hearing loss; it does not relate the onset of
such hearing loss to the veteran's period of service or the
year thereafter; nor does it relate the onset of external
otitis to the veteran's period of service.
4. Tinnitus was not present in service.
CONCLUSIONS OF LAW
1. The rating decision of September 25, 1974, denying
entitlement to service connection for bilateral external
otitis and hearing loss was not clearly and unmistakably
erroneous. See 38 U.S.C. 1110; 38 C.F.R. 3.105(a)
2. The decision of the agency of original jurisdiction in
September 1974 denying the veteran's claims of entitlement
to service connection for bilateral external otitis and
hearing loss is final. See 38 U.S.C. 1110, 7105; 38 C.F.R.
3.104(a), 3.307, 3.309, 19.129(a).
3. Evidence received since the agency of original
jurisdiction denied entitlement to service connection for
bilateral external otitis and hearing loss in 1974 is not
new and material and the veteran's claims for those benefits
have not been reopened. See 38 U.S.C. 5108.
4. Tinnitus was not incurred in or aggravated by service.
See 38 U.S.C. 1110, 5107.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Initially, we note that we have found that the veteran's
claims are "well-grounded" within the meaning of 38 U.S.C.
5107(a); effective on and after September 1, 1989. That is,
we find that he has presented claims which are plausible.
We are also satisfied that all relevant facts have been
properly developed. No further assistance to the veteran is
required to comply with the duty to assist the veteran
mandated by 38 U.S.C. 5107(a).
I. Rating Decision of September 1974
The evidence which was of record when the agency of original
jurisdiction considered the veteran's claims of entitlement
to service connection for bilateral external otitis and
hearing loss in September 1974 may be briefly summarized.
Service medical records were negative for any complaint,
treatment or diagnosis of any problem with the ears or with
hearing. At an examination for service separation in
October 1945, the veteran's ears were evaluated as normal
and hearing was 15/15 bilaterally to the whispered voice, or
normal. An admission report from the VA Medical Center in
Temple, Texas, showed that the veteran was admitted in
August 1946 with a provisional diagnosis of infection,
fungus, excessive, bilateral, external auditory canals. A
discharge report from that VA facility in September 1946
showed a final diagnosis of otomycosis, chronic, with
secondary infection. Records from the Santa Fe Railroad
Employees Association from 1950 to 1959 showed that the
veteran had received treatment for unrelated conditions;
physical examinations in September 1950 and December 1958
contain the notations that examinations of the ears had been
negative. A private physician reported that, in August
1960, he had treated the veteran for acute external otitis,
right ear, and that, in July 1964, he treated the veteran
for external otitis of both ears.
The evidence of record in 1974 established that the veteran
had bilateral external otitis or otomycosis as early as
August 1946. However, there was no evidence that such an
ear disorder had begun during the veteran's period of
service, which ended in October 1945. The veteran's
representative points to the fact that the ear disorder was
diagnosed and treated within one year of the veteran's
separation from service. It is correct that VA regulations
provide that, if certain diseases are manifested to a
compensable degree after service but within a "presumptive
period," usually one year, it is presumed that the disease
developed in service. 38 C.F.R. 3.307, 3.309. However,
otitis or otomycosis or other ear infections are not
diseases for which a presumptive period is provided by VA
regulations. Furthermore, there was no evidence of record
in 1974 that the veteran had a hearing loss. Therefore, we
find that the rating decision in question was a reasonable
exercise of judgment based on the evidence then of record
and did not involve error. 38 U.S.C. 1110; 38 C.F.R.
3.105(a).
II. Additional Evidence
The veteran has submitted no additional evidence with
reference to external otitis. He did submit treatment
records from 1988 to 1991 from the Scott and White Clinic of
Temple, Texas, concerning unrelated medical conditions.
With reference to hearing loss, the veteran submitted a
report from the Chief of Audiology at the Scott and White
Clinic who stated that, in August 1986, the veteran had an
audiological evaluation which showed severe bilateral high
frequency sensorineural hearing loss, for which hearing aids
were prescribed. This evidence is "new," as it is not
cumulative of any evidence of record in 1974 and is, in
fact, the first clinical evidence that the veteran has
developed a hearing loss. However, this additional evidence
is not "material." Assuming, without deciding, that the
additional evidence is relevant and probative, there is no
reasonable possibility that the additional evidence, when
viewed in the context of all the evidence, both new and old,
would change the outcome. See Colvin v. Derwinski, U.S.
Vet. App. No. 90-196 (March 8, 1991) and Smith v. Derwinski,
U.S. Vet. App. No. 89-13 (March 15, 1991). The additional
evidence contains no objective proof whatever that the
veteran's hearing loss had its onset in service or within
one year of separation from service. 38 U.S.C. 1101, 1110,
1112, 1113; 38 C.F.R. 3.307, 3.309.
III. Tinnitus
Service medical records are negative for any complaint,
treatment or diagnosis of tinnitus. Nor was any complaint
of tinnitus noted at the veteran's examination for service
separation in October 1945. The veteran has submitted no
clinical evidence which would tend to show that he has or
has had tinnitus. The veteran's unsubstantiated assertion
more than 45 years after his separation from service that he
has had tinnitus since then is not of sufficient probative
weight to convince the Board that he developed persistent
tinnitus in service. Accordingly, service connection for
tinnitus is not established. 38 U.S.C. 1110.
While we have considered the doctrine of affording the
veteran's benefit of any existing doubt with regard to this
issue, the record does not demonstrate an approximate
balance of positive and negative evidence as to warrant
resolution of this matter on that basis. 38 U.S.C.
5107(b).
ORDER
The agency of original jurisdiction's rating decision of
September 25, 1974, was not clearly and unmistakably
erroneous. New and material evidence not having been
submitted to reopen claims of entitlement to service
connection for bilateral external otitis and hearing loss,
those benefits sought on appeal are denied. Service
connection for tinnitus is denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
NANCY R. ROBIN JEFF MARTIN
(CONTINUED ON NEXT PAGE)
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C. § 7266 (1991),
a decision of the Board of Veterans' Appeals granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the
agency of original jurisdiction on or after November 18,
1988. Veterans' Judicial Review Act, Pub. L. No. 100-687,
§ 402 (1988). The date which appears on the face of this
decision constitutes the date of mailing and the copy of
this decision which you have received is your notice of the
action taken on your appeal by the Board of Veterans'
Appeals.